President Peter Mutharika sued over CoP
Four Members of Parliament (MPs) Thursday obtained a court order at the High Court registry in Mzuzu stopping the appointment and subsequent swearing in of Fiona Kalemba as Clerk of Parliament (CoP).
Kalemba was Thursday introduced to the Business Committee of Parliament and all members welcomed her appointment. She was expected to be sworn in by the Parliamentary Service Commission Friday.
The four legislators include Enock Chihana, Harry Mkandawire, Kamlepo Kalua and Peter Chakwantha with President Peter Mutharika and Attorney General (AG) Kalekeni Kaphale being respondents.
But deputy leader of the house, Kondwani Nankhumwa, described the Mzuzu registry choice as judge shopping arguing that all concerned parties were based in Lilongwe and not Mzuzu.
But one of the applicants, Mkandawire, said there is no need for people to argue on their Mzuzu choice as everyone knows that he stays in Mzuzu.
In the affidavit in support of their application, the legislators said out of the eight candidates who competed for the post in interviews that Parliamentary Service Commission (PSC) called for on October 5 and 6 this year, Justice M.C.C. Mkandawire emerged victorious.
“By its minutes dated 6th October, 2015. The PSC after deliberating on the report of the Interview Committee agreed to offer Justice Mkandawire the post of CoP in line with the requirements of the Parliamentary Service Act (PSA),” reads the affidavit.
It continues to say in line with PSA, the PSC recommended Justice Mkandawire’s name to the President for appointment in line with Section 16 of the PSA.
The legislators said the PSC met again on the issue of the CoP on October 21 where it was informed that the AG had not approved Justice Mkandawire’s name and instead demanded that he be given three names from which he was to choose one.
According to the MPs, the PSC resolved that the same name that was submitted before be resubmitted as Kaphale’s reasons for not appointing could not be accommodated.
“The PSC was constrained to change their position by virtue of Section 11 of the PSA which mandates the PSC to appoint personnel only on merit. In the name of independence, the Speaker of Parliament should have the right to choose the Chief Executive of his Secretariat just as the President does under section 189(1) of the constitution.
The applicants said it is wrong for the Attorney General to call for three names from which he chooses one as section 16 of PSA does not give him discretion in making the appointment of the CoP after the PSC has made the recommendations.
“The 2nd Respondent went ahead to appoint Ms. Fiona Kalemba as CoP in total disregard of the PSA and the PSC met again on 3rd November 2015 to deliberate on the appointment,”
The legislators said the President was sworn-in to uphold the Constitution but in this case he has chosen to be above the law.
“Unless an interlocutory injunction is granted as prayed for herein, the respondent will continue contravening the Constitution and all laws of Malawi which will not be conducive to good governance of the country.
“Wherefore, I humbly pray to the honourable court for an interlocutory order of injunction requesting the Respondents or its servants or agents or any other person to dis-appoint Ms. Fiona Mwale [sic] and preventing her swearing in as Clerk of Parliament,” reads the affidavit that Chihana swore by.
The parties are expected to meet in Blantyre for inter-parte hearing.
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